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Monday, September 12, 2011

Clubhouse Gin

The Wistar's and the London Jockey were not the only "Clubhouse" Gins to arrive in California during the years when there was a mighty frenzy for gold. Two other competitors entered the market during the latter years of the 1850s and into the early 1860s, William S. Corwin and John T. Daly. So fierce was the competition for the lucrative market in the mining camps that Corwin sued Daly for the sole rights to use the word Clubhouse on their containers and associated packaging. A short excerpt of the court proceedings is as follows:

1. No dealer in any commodity has a right to be protected by injunction in the exclusive use simply of a name by which to designate it, which does not express its origin, ownership, or place of manufacture or sale, but merely its quality, kind, texture, composition, utility, destined use or class of consumers, or some other attribute which it has in common with other Bimilar commodities.

2. So held, in regard to the designation of gin by the term " Club House," it being established that such name had been long in use as designating a superior kind of gin used in such establishments.

3. There may be an exclusive right in names expressing qualities or attributes where forming part of a device peculiar to the manufacturer or vendor of the article.

4. Whether the right of using a trade-mark, adopted by a dealer to indicate his own commodities, can be transferred to another so as to enable the latter to restrain a third person who has previously used the same trade-mark, from continuing its use, and whether the appropriation of such device as a trade-mark can be continued forever by constant assignments of it. Quere I

5. The employment of particular words or insignia, as a trade-mark, must be confined to the place n:here they are used, and its exportation to other places cannot interfere with the right acquired by others previously using them in such places.

6. The case of Fetridge v. Merchant (4 Abb.), commented on and explained.

. Appeal by John T. Daly and William H. Daly, the defendants, from a judgment at special term, substantially ordering the defendants to desist from the use of the words " Club House," as a prefix to designate gin sold by them. The plaintiffs are William S. Corwin and Albert Webb. The facts, as they appeared on the trial, from the evidence, pleadings and admissions, were as follows: Certain distillers manufactured, before the year 1857, at Rotterdam, in Holland, a certain kind of gin, for a Mr. William S. Campbell, to be imported by him into the United States, and branded the casks containing it with the words "Club House," and the letters W. S. C., which were the initials of his name. He, on its arrival in this country, drew it off intosquare glass flasks, holding somewhat less than a quart, and having thereon a dark paper label with the words " Club House Gin " thereon, in gilded letters. These flasks were put up in wooden boxes, painted green outside, with the words " Club House Gin," and over them the letters W. S. C., which are also the initials of one of the plaintiffs, in white paint. In 1857, Campbell transferred to the plaintiffs all his right to the gin, with the marks on the vessels containing it.

The defendants also bottle gin, imported by them, in square flasks similar to those used by the plaintiffs, but having the words " Club House, J. T. Daly" blown on one of their shoulders, and a white paper label with the words "London Club House Gin, sole importer Wm. H. Daly," printed in black thereon. Such flasks are put up in unpainted wooden boxes, nearly of the same size as those used by the plaintiffs, with the words " London Club House Gin " painted in black on the outside.

The plaintiffs, after the defendants had the words before mentioned blown on their flasks, imitated it, by having the initials W. S. C.,-and the words " Club House Gin," blown on theirs. They also, after the defendants had exported their gin to California, with the marks and in the vessels already described, followed them, by exporting their gin, and there advertising it as the only true " Club House Gin."

No insignia, devices or means are alleged in the complaint to have been used by the defendants, to mislead any one or injure the plaintiffs, other than those already stated.

One witness testified that the words "Club House," as applied to articles of merchandize, had been used to designate those of superior quality, for twenty years, in Dublin and London. Another, that they had been applied to gin. And a third, that " London Club " had been applied to the same article for several years past, and all concurred in the opinion that it was a name for mere quality.

No intent, by the defendants, to use the title " ClubHouse," to induce any one to believe their gin the same a? that of the plaintiffs, or the use of any other meansfoi that purpose, was contained in the finding of facts.

The plaintiffs alleged in their complaint that, in Rotterdam, there existed associations called clubs, and that gin similar to that manufactured there and imported by them, was consumed in the houses occupied by such clubs, where the best articles of the kind were generally believed to be consumed.

The evidence showed that the defendants only shipped their gin to and sold it in California, and that the plaintiff followed them into that market, after the former had sold it there with the title of Club House Gin.

E. H. Owen, for Plaintiffs and Respondents.

F. H. Upton, for Defendants and Appellants.

Robertson, J.—The sole remedy sought by and allowed to the plaintiffs in this case, seems to have been the right of exclusive employment of the words " Club House," to designate their gin, and the defendants were not restrained from using any particular devices accompanying them, or any particular mode of printing, painting, branding or carving them, on any vessels containing them; or any labels or signs, indicating what the commodity was, or where sold. Their offence, if any, therefore, was in using such names to express the commodity sold. They were not prohibited from their use, as a penalty for selling their article as that of the plaintiffs', because there was no evidence of any oral or written representation, or artifice, used by the defendants to pass their gin off as the plaintiffs', except the title "Club House," and the charge in the complaint, to that effect, is not sustained, except by that evidence. The color of the labels, and of the letters on them, on the flasks; the color of the boxes, and of the letters on them, are entirely different. The names on the flasks were first blown there by the defendants ; they added to the name of the article, both onthe flasks and boxes, that of one of the defendants, and prefixed the name " London," to the name on the box. There could be no pretence that the most casual and ignorant observer would not diseriminate the articles, much less persons who knew what they were going to buy (Crawshay v. Thompson, 4 Man. & Gr. 357 ; Snowden v. Noah, Hopk. 347; Bell v. Locke, 8 Paige, To), and, therefore, as I shall presently show, the plaintiffs are not entitled to any relief.

No fraudulent intent in the use of the title " Club House," is charged in the complaint, proved by the evidence or found by the court. The decision must, therefore, have rested exclusively on the ground, either that a plaintiff, having made use of a title to designate his wares, no one else has a right to use the same to designate similar wares, or that the subsequent use, by such other person, of such title, is in law or fact a representation that his wares are the same.

There is also no finding by the court, whether the addition of " London," or the defendants names, was not sufficient to distinguish them, which has'been held to be fatal to a claim of the same kind, (Snowden v. Noah; Bell v. Locke, ubisup.; Perry v. Truefitt, 6 Beav. 73,) and, therefore, I must assume that they were taken as matter of law not to be sufficient. The right of a plaintiff to the exclusive use of a name, of course, can only grow out of the principle that the subsequent use' of it, by another, amounts to a representation that his wares are the same. Of course it will not be contended, that if he has confined its use to a particular commodity, he can prevent it being applied to others of a different kind. Such a copyright in a name would be more extensive and durable than those granted by authority of the Federal Constitution. although its grant by the courts of a state might somewhat trespass upon the exclusive powers of the general government. (Gibbons w.Ogden, 9 Wheat. 1.) Courts have upheld rights to devices, although, as I think, contrary to the spirit and even letter of that instrument.

The Campbell/Corwin and Daly Clubhouse bottles are well represented in the gold camps of this state. Both are quite scarce, perhaps due to their case shape, and the fact that they were often discarded by being thrown out a window or doorway and were either broken by contact with each other or hard objects or fractured by the ensuing 150 yrs of exposure to the freezing and thawing of high country winters. Snow and ice are no friends to glass bottles as we in the hobby are well attuned. Unless a container is situated mouth downhill, or buried by several inches of duff and soil, it hasn't a chance of survival to this day. Thanks to remaining buildings and dumps and privy pits from the mining areas we have some of these fragile bottles to enjoy.

The J.T.Daly in these photos, complete with backwards "S" in Clubhouse, has a black iron pontil and the W.S.C., a smooth base example, wears a complete label from the years that Corwin was the sole seller of the brand.

2 comments:

There is also another similar "Western" Gin embossed Woodgate & Co. / Clubhouse / Gin. I dug one with a few friends about 3-4 years ago in the bay area, and know of two other diggers that dug about 6 broken and damaged examples, 1 mint. I can only account for two mint examples, and 3 in-tact examples...2 of those have big lip chips and the other a blown out hole in the corner. I will try to post a picture of the example I have later in the week....